Paxton & Keely - [2023] FedCFamC2F 493

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paxton & Keely [2023] FedCFamC2F 493

File number(s): MLC 5505 of 2021

Judgment of: JUDGE J YOUNG

Date of judgment: 3 May 2023

Catchwords: FAMILY LAW – undefended – parenting and property – where father has disengaged from proceedings – where father has not spent significant time with the children since 2018 – where father has committed family violence – where father has abused illicit substances – where father has been incarcerated for periods of time – where 16 year old child is only child of the relationship with the father’s surname – where mother’s family live overseas – where wife has been solely responsible for mortgage repayments – where wife has limited future earning capacity – orders made for sole parental responsibility – orders made for change of name for 16 year old child – orders made for mother to obtain children’s passports without consent – orders made for property adjustment of 10% in wife’s favour

Legislation:
Australian Passports Act 2005 (Cth) section 11(1)

Family Law Act 1975 (Cth) pts VII, VIII, ss 60B, 60CA, 60CC(3), 61DA, 75(2), 79(2) and (4).

Cases cited:
Beach & Semmler (1979) FCWA 1

Bevan v Bevan [2013] FamCAFC 116

In the Marriage of Hickey [2003] FamCA 395

Kuebler & Kuebler (1978) FLC 90-434

Line and Line (1996) 21 FamLR 259

Lysons & Lysons [2019] FamCAFC 29

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513

Reagan & Orton [2016] FamCA 330

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 112

Date of hearing: 19 April 2023

Place: Melbourne

Counsel for the Applicant: Ms Brookes

Solicitor for the Applicant: Keane Family Law

Counsel for the Respondent: Did not participate
ORDERS

MLC 5505 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PAXTON

Applicant

AND:
MR KEELY

Respondent

order made by:

JUDGE J YOUNG

DATE OF ORDER:

3 MAY 2023

THE COURT ORDERS THAT:
1.All previous interim orders be dismissed.
2.The mother have sole parental responsibility for the children X born in 2006 and Y born in 2016 (“the Children”).
3.The Children live with the mother.
4.The father is restrained by injunction from communicating with or contacting the Children in any way without the express written (including by text message) consent of the mother.
5.The child previously known as X PAXTON-KEELY born in 2006, (“the Child”) now be known as X PAXTON.
6.The mother apply to the Victoria Registry of Births, Deaths and Marriages to register the change of the Child’s name, in accordance with Order 5, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
7.The mother is authorised to apply for and receive an Australian passport for the Children pursuant to s 11 of the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
8.Pursuant to s 65Y of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paxton & Keely

Details

AGLC: Paxton & Keely [2023] FedCFamC2F 493
Case: [2023] FedCFamC2F 493
Decision Date

CaseChat Overview and Summary

Paxton & Keely was a case heard by the Federal Circuit and Family Court of Australia. The case involved an application for parenting and property orders. The mother sought sole parental responsibility, orders that would restrict the father's contact with the children, a change of surname for the elder child, orders that would permit the mother to obtain Australian passports for the children without the father’s consent, and orders that would permit the mother to travel internationally with the children without notification to, or the consent of, the father. The mother also sought orders that the father be restrained from approaching her and the children, their home, schools or workplaces. The mother also sought orders that would result in the transfer of the family home to her. The father did not participate in the proceedings and the matter proceeded on an undefended basis.

The court found that it was in the children’s best interests to make the orders as sought by the mother. The court found that it was in the children’s best interests for the mother to have sole parental responsibility. The court found that the mother’s proposals as to parenting were strongly favoured by the primary considerations and the court gave considerable weight to the views of the elder child, X. The court found that it would be in the children’s best interests to restrain the father from communicating with or contacting the children in any way without the express written consent of the mother. The court found that it would be in the elder child’s best interests to change her surname from Keely-Paxton to Paxton. The court found that it was in the children’s best interests to permit the mother to obtain Australian passports for the children without the father’s consent and to permit the mother to travel internationally with the children without notification to, or the consent of, the father.

The court found that it was just and equitable to make orders adjusting the property interests of the parties and bringing their financial connection to an end. The court found that it was just and equitable for orders to be made which would see the wife retain the property and make no payment to the husband. The court found that an adjustment of 10% in the wife’s favour to be just and equitable having regard to the relevant considerations set out in the Family Law Act 1975 (Cth).

Orders